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1996 DIGILAW 207 (ALL)

Pushpa Sand v. Rent Control And Eviction Officer

1996-02-20

S.N.AGGARWAL

body1996
Judgment : SUDHIR Narain, J. 1. The petitioner seeks writ of certiorari quashing the order dated 5-2-1996 passed by Rent Control and Eviction Officer, respondent No. 1, declaring the house in dispute as vacant under Section 12 of U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act' ). 2. THE petitioner is a tenant of the house No. 10/419, Khallasi Lines, Kanpur. Respondent No. 2, who is landlady of the house in question, filed S. C. C. Suit No. 609 of 1991 in the Court of Judge Small Causes, Kanpur. THE suit was decreed ex parte on 9-1-1992. THE petitioner filed an application to set aside the ex parte decree. THE ex parte decree has been set aside by order, dated 15- 2-1995. Respondent No. 2 has filed revision before the District Judge, Kanpur which is alleged to be pending. Respondent No. 2 further filed an application for release of the house in dispute under Section 21 (1) (a) of the Act in the year 1993 on the ground of bona fide need, which is still pending. Respondent No. 2 further filed an application for release of the building in question under Section 16 (1) (b) of the Act. One Bipin Kumar Pandey also filed an application for 'allotment on the allegation that the petitioner is living in House No. 48/152, Generalganj, Kanpur with her husband since June 1992 and the accommodation in question should be deemed as vacant. It was further averred that the petitioner has acquired House No. 2108 E. W. S., Avas Vikas Colony, Scheme Kalyanpur, Kanpur and has obtained its possession. A notice was issued to the petitioner and she filed objection. It was stated that before marriage she belonged to a different caste and therefore, in-laws of the petitioner who were very orthodox, did not permit her to live with her husband in the same house. 3. AN affidavit dated 22-10-1994 was filed on behalf of respondent No. 2 wherein it was stated that the petitioner has been allotted House No. 2108 E. W. S., Avas Vikas Colony, Scheme-1. Kalyanpur, Kanpur wherein she is residing. 3. AN affidavit dated 22-10-1994 was filed on behalf of respondent No. 2 wherein it was stated that the petitioner has been allotted House No. 2108 E. W. S., Avas Vikas Colony, Scheme-1. Kalyanpur, Kanpur wherein she is residing. The Rent Control and Eviction Officer dropped the proceedings by order dated 23rd March, 1995 on the ground that respondent No. 2 has filed application under Section 21 (1) (a) of the Act which is pending and secondly the ex parte decree was passed against the petitioner and the same has been set aside and the matter is pending in the Civil Court. It was observed that after the matter is decided the application shall be considered and the proceeding is to be dropped. 4. RESPONDENT No. 2 file an application on 9th August, 1995 purporting to be under Rule 22 (f) of the rules framed under the Act for deciding the matter on merits in accordance with law. RESPONDENT No. 1, after considering the case on merits, held that the husband of the petitioner has got House No. 48/152, General ganj, Kanpur and the petitioner is living there since then. It was further found that the petitioner has been allotted House No. 2108 E. W. S., Avas Evam Vikas Colony, Scheme-1, Kalyanpur, Kanpur and she has also obtained its possession. A report of the commissioner was submitted which indicated that in the said house there are two rooms, kitchen, latrine etc. and the petitioner can live there. As the petitioner has acquired the house in the same city the accommodation in question shall be deemed as vacant under sub-section (3) of Section 12 of the Act. The petitioner has challenged this order, dated 5-2-19,96 in the present writ petition. I have heard learned counsel for the parties. 5. LEARNED counsel for the petitioner urged that the Rent Control and Eviction Officer had no jurisdiction to review his own order under Rule 22 (f) of the Rules. The order passed by him was final and he has not been conferred with any power of review under any provision of the Act. 6. THE petitioner has not denied that House No. 2108 E. W. S., Avas Vikas Colony, Scheme-1, Kalyanpur, Kanpur has been allotted to her and she has also obtained its possession. The order passed by him was final and he has not been conferred with any power of review under any provision of the Act. 6. THE petitioner has not denied that House No. 2108 E. W. S., Avas Vikas Colony, Scheme-1, Kalyanpur, Kanpur has been allotted to her and she has also obtained its possession. A commissioner also went to inspect the said house and it was found that it consist of two rooms, kitchen, bathroom, latrine etc. and there is facility of water etc. also. It is situated in the Kanpur City. It is also not denied that her husband owns a house No. 48/152, Generalganj, Kanpur. It is also reported that the petitioner is living in that house since 1992. THE contention of the petitioner was that her in-laws are not permitting her to live in the said house. As the petitioner has acquired another house in the same city it will be deemed as vacant under Section 12 (3) of the Act. The Rent Control and Eviction Officer by order dated 23-3-1995 had not decided the question on merit. He had passed an order for dropping the proceeding simply on the ground that respondent No. 2 had filed an application under Section 21 (1) (a) of the Act and therefore he has no jurisdiction to decide as to whether there is vacancy of the disputed house. The view taken by him was manifestly erroneous. The proceeding under Section 21 of the Act does not bar the Rent Control and Eviction Officer to declare an accommodation as vacant if the necessary facts are placed before him which indicate that either there is deemed vacancy or actual vacancy. If the tenant has vacated the accommodation or there is a deemed vacancy under law it will be open to the Rent Control and Eviction Officer to pass an order releasing the property in question in favour of the landlord or to allot it under Section 16 of the Act. In T. C. Rekhi v. Prescribed Authority, Nainital and others, 1983 (2) ARC 223, it has been held that there is no specific bar in the Act prohibiting the landlord for filing application under Section 21 (1) (a) of the act if he has already filed an application under Section 16 (1) (b) of the Act. In T. C. Rekhi v. Prescribed Authority, Nainital and others, 1983 (2) ARC 223, it has been held that there is no specific bar in the Act prohibiting the landlord for filing application under Section 21 (1) (a) of the act if he has already filed an application under Section 16 (1) (b) of the Act. Similarly, when an application has been filed under Section 21 (1) (a) of the Act the landlord can file accommodation can be declared as vacant. 7. THE Rent Control and Eviction Officer was justified in considering the application filed by the landlord under Rule 22 (f) of the Rules to decide the controversy on merits. In Daman Singh and others v. State of Punjab, AIR 1985 SC 973 , it was held that if any ground which was urged by a party and was not considered by the authority concerned it is open to the party to file proper application for review of the order. Learned counsel for the petitioner has placed reliance upon the decision Shiv Prakash Agnihotri v. IX Additional District Judge, Kanpur and others, 1982 (2) ARC 461, wherein it was held that the District Judge cannot review his earlier order under this rule. THE Court, however, in this very writ petition declined to exercise discretionary jurisdiction under Article 226 of the Constitution of India because if the order is set aside it will be maintaining an illegal order passed earlier. 8. IN the present case the Rent Control and Eviction Officer had dropped proceeding and did not decide the controversy raised before him. He did not ad judicate the question as to whether there was a vacancy. A review of the order which has been passed on merit will not be permissible but when an authority failed to exercise jurisdiction taking erroneous view of law or under some misconception of law it will be open to recall his order and consider the case on merits. Secondly, on facts it is not denied that the petitioners has been allotted House No. 2108 E. W. S., Avas Vikas Colony, Kalyanpur, Kanpur and she has obtained possession and her husband also owns House No. 48/152, Generalganj, Kanpur in which he is residing and the petitioner is also reported to be residing there. On these facts the house in question shall be deemed as vacant under Section 12 (3) of the Act. On these facts the house in question shall be deemed as vacant under Section 12 (3) of the Act. Even if it is held that the Rent Control and Eviction Officer has no jurisdiction to recall the order but on facts it has been found that the accommodation in question is vacant, it will not be- proper to interfere in order in question. 9. THE writ petition is accordingly dismissed. Petition dismissed.